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History of discrimination

The AMA became involved in the issue of lifestyle discrimination in the 1990s when members alerted AMA staff that employers were canceling health-insurance coverage for motorcycle riding.

Because of the AMA’s hard work alongside other groups, HIPAA contained a provision prohibiting employers from denying health-care coverage to motorcyclists and others engaged in legal activities when injured.

But the federal agencies that implemented the law subverted the intent of Congress. Their rules forbid the exclusion of motorcyclists and ATV riders from overall coverage under the employer’s plan, but allow lifestyle restrictions in the payment of claims.

Two attempts to close the loophole failed.

In 2005, U.S. Reps. Ted Strickland of Ohio and Michael C. Burgess of Texas co-sponsored a bill that would protect individuals injured in recreational activities. That bill was not enacted.

In 2007, Sen. Susan Collins of Maine reintroduced the HIPAA Recreational Injury Technical Correction Act, which also faltered.

Cusano says the agencies implementing HIPAA “wanted employers to have flexibility” in determining the scope of their health-insurance coverage.

Recent action

The AMA sent a letter on Nov. 7 to Kathleen Sebelius, secretary of the U.S. Department of Health and Human Services, seeking answers to two questions:

• Will injuries resulting from activities that contribute to active lifestyles, such as riding a motorcycle or ATV, be covered without qualification under the minimum requirements of all the plans offered in the federal and state exchanges?

• Will the change in minimum requirements under the ACA require all private insurers to include coverage, without qualification, for lifestyle choices such as riding a motorcycle or ATV?

At press time, four months later, Secretary Sebelius had yet to respond.

States slow to act

Cusano, who served as chief legal counsel to Coventry Health Care, Inc. on implementation of the ACA, says motorcyclists and others with an active lifestyle must turn to the states for relief.

He says employers or insurance providers submit their plans, including exemptions, to the state insurance regulators, and the regulators decide whether the requested exemptions fall in line with state law.

According to a 2010 report from the National Conference of State Legislatures, 29 states and the District of Columbia have statutes that protect employees’ from adverse employment actions based on their off-duty activities.

These statutes provide three different levels of protection:

• Use of tobacco only;

• Use of lawful products; and

• Any and all lawful activities. Four states—California, Colorado, New York and North Dakota—offer statutory protection for employees who engage in lawful activities.

But most of those laws protect workers only from being dismissed or disciplined for their “risky behavior” off-duty and away from the employers’ premises.

The statutes do not address exclusion of lifestyle choices from the employer’s health care plan.

Only Colorado specifically prohibits discrimination in health care coverage for participants in “motorcycling; snowmobiling; off-highway vehicle riding; skiing; or snowboarding.” (See Colorado Revised Statutes section 10-3-1104.)

Time for local action

With no help on the horizon at the federal level, those who wish to end this type of lifestyle discrimination must focus on convincing their state legislators to adopt state laws and regulations recognizing motorcycling and ATV riding as legitimate activities.

Stuermer has asked his state representative in Oregon to press for a law like Colorado’s that prohibits lifestyle discrimination based on the nature of the injury.

“By the grace of God, somehow we’ll make it,” Stuermer says. “But what if this happened to someone with a wife and two kids? What if this happened to 40 families?”

The AMA encourages other states to use the Colorado law as a starting point for efforts to end this type of discrimination within their jurisdictions.